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States Court of Appeals for the Seventh Circuit
The Dirksen Federal Building in Chicago, home to the United States Court of Appeals for the Seventh Circuit. Photo by Ken Lund via Flickr (CC BY-SA 2.0)

Federal court rules 1964 Civil Rights Act bans LGBT bias

CHICAGO — The same law that guards against workplace discrimination based on religion, Title VII of the Civil Rights Act of 1964, was interpreted April 4 by a U.S. appeals court to protect against bias based on sexual orientation.

In an 8-3 decision, the U.S. Court of Appeals for the Seventh Circuit used Title VII’s provision protecting against sex discrimination to rule in favor of a woman who said she was denied full-time employment and eventually fired from a community college because she lives as a lesbian.

“Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discriminate on the basis of a person’s ‘race, color, religion, sex, or national origin…,’ chief judge Diane P. Wood wrote in the majority opinion posted on the court’s website. “… We conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination. We therefore reverse the district court’s judgment dismissing Kimberly Hively’s suit against Ivy Tech Community College and remand for further proceedings.”

The Seventh Circuit is the highest court to interpret Title VII to include lesbian, gay, bisexual and transgender (LGBT) employees, the decision indicates.

“For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation. The Supreme Court, however, has never spoken to that question,” Wood wrote. “In this case, we have been asked to take a fresh look at our position in light of developments at the Supreme Court extending over two decades. We have done so.”

Hively’s case began when she filed a charge in December 2013 with the U.S. Equal Employment Opportunity Commission, alleging Ivy Tech Community College denied her full-time employment six times between 2009 and 2014 because of her sexual orientation. In July 2014, the college refused to renew her contract for part-time employment. A district court dismissed her suit, and she appealed to the Seventh Circuit, a Chicago-based court with jurisdiction in Illinois, Indiana and Wisconsin.

Hively claims that had she been a man married to, dating or living with a woman, and all other circumstances were the same, Ivy Tech would not have refused to promote her nor fired her, Wood said in her opinion.

Ivy Tech denies Hively’s claim and will defend itself in court, according to a college administrator, but will not appeal the circuit court’s decision.

“Ivy Tech Community College rejects discrimination of all types; sexual orientation discrimination is specifically barred by our policies,” Jeff Fanter, Ivy Tech’s senior vice president student experience/communication and marketing, said. “Ivy Tech respects and appreciates the opinions rendered by the judges of the Seventh Circuit Court of Appeals and does not intend to seek Supreme Court review.

“The College denies that it discriminated against the plaintiff on the basis of her sex or sexual orientation and will defend the plaintiff’s claims on the merits in the trial court,” Fanter said.

The three dissenting judges said discrimination based on sexual orientation is illegal, but rejected Wood’s decision to interpret sex discrimination to include LGBT employees.

“Sexism (misandry and misogyny) and homophobia are separate kinds of prejudice that classify people in distinct ways based on different immutable characteristics,” judge Diane S. Sykes wrote in her dissent. “Simply put, sexual orientation discrimination doesn’t classify people by sex; it doesn’t draw male/female distinctions but instead targets homosexual men and women for harsher treatment than heterosexual men and women.”

“To a fluent speaker of the English language — then and now — the ordinary meaning of the word ‘sex’ does not fairly include the concept of ‘sexual orientation,'” Sykes wrote. “The two terms are never used interchangeably, and the latter is not subsumed within the former; there is no overlap in meaning.”

Woods was among judges considered by former President Barack Obama as a candidate for the U.S. Supreme Court; Sykes was among current President Donald Trump’s finalists, USA Today reported.

— by Diana Chandler | BP

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